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THE CONSTITUTIONAMTY AND EXPEDIENCY OF CONFISCATION VINDICATED. 



fe X E E G H 



OF 



HON. LYMAN TRUMBULL, OF ILLINO 



ON THE 



ILL TO CONFISCATE THE PROPEETY AND FKEE 

THE SLAVES OF REBELS; 



DELIVERED 



IN THE SENATE OF THE UNITED STATES, APRIL 7, 1862. 



WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 
1862. 






INEXOIflWGE 

JUN 5 1917 



SPEECH. 



The Senate having resumed the consideration of the bill 
(S. No. 151) to confiscate the property and free the slaves 
of rebels — 

Mr. TRUMBULL said: 

Mr. President, before proceeding with the re- 
marks which I design- to make upon this bill, I 
desire to move two amendments, one of which is 
verbal, and the other is to make the bill a little 
more definite. In the fourth line of the seventh 
section, I move to strike out the words " garnishee 
and," and to insert in lieu thereof the words, 
" process of garnishment and other," so that it 
will read: 

That the several district courts of the United States are 
liereby invested with power to issue all processes whether 
mesne or final as well in chancery and admiralty as at com- 
mon law, including process of garnishment and other pro- 
cess as in cases of foreign attachment, and to do every other 
matter and thing necessary or proper to carry out the pur- 
poses of this act. 

The amendment was agreed to. 

Mr. TRUMBULL. I desire to move another 
amendment in the thirteenth line of the first sec- 
tion of the bill, after the word "and," to insert 
the words " as to all property which shall be 
seized and appropriated as hereinafter provided;" 
so that the clause will read: 

Or giving aid and oomfort to said rebellion, shall be for- 
feited and confiscated to the United States, and as to all 
property which shall be seized and appropriated as herein- 
after provided, such forfeiture shall take immediate effect 
Upon the commission of the act of forfeiture, &e. 

The amendment was agreed to. 

Mr. TRUMBULL. Mr. President, having 
made a brief explanation of the main features of 
thebill under consideration, and the principles on 
which it was based, at the time it was reported to 
the Senate, it was not my intention to have said 
anything more upon it, at all events, unless in 
closing the debate; but the fierceness with which 



it has been assailed, and the misrepresentations 
to which it has been subjected, unintentional of 
course, make it necessary that I should reply to 
some of the strictures upon it. Assuming that it 
was a sweeping measure for the confiscation of 
all the property in the southern States, the bill has 
been denounced as unconstitutional and inexpe- 
dient with a vehemence and virulence.not to have 
been expected, and surely but illy calculated to 
promote that calm, deliberate, and candid consid- 
eration which the admitted importance of the sub- 
ject should command. The Senator from Califor- 
nia [Mr. McDougall] denominated it " an act to 
sweep the whole of a populous country of all 
property, real and personal." 

The Senator from Pennsylvania, [Mr. Cowan,] 
after assuming that it would be " moderate to 
estimate" the number of persons to be affected by 
the bill at four millions, said: 

" This hill proposes at a single stroke to strip all this vast 
number of people of all their property, real, personal, and 
mixed, of every kind whatsoever, and reduce them at once 
to absolute poverty." 

My colleague [Mr. Browning] said the bill 
"strikes at all the property of every kind and 
character of all the citizens of the seceded States 
with scarcely an exception." 

The Senator from Virginia [Mr. Carlile] said: 

" It will be seen that all the property of each and every 
citizen in the seceded States will be forfeited under this 
bill." 

How grossly these Senators have misconceived 
the character of the bill will be apparent on a 
glance at its provisions. So far from striking at 
all the property of each and every citizen in the 
seceded States, it would not probably reach the 
property of one in ten of the rebels, and in no ease 
would touch the property of a loyal citizen. In 
the first place, the bill is prospective in its opera- 



tion, and confiscates the proD-''-y of "« one for 
anything done before its/'^^^ssage. It would be 
in the power of every '^^^^ i" the land to save his 
property from co'iiscation by ceasing to war 
against the Go'cnment from the time of its pas- 
sage. Sec'idly, it only applies to the property 
of such rebels as are beyond the reach of judicial 
process. Wherever the person of the rebel can 
be reached and made subject to the punishment 
his crimes deserve, the bill does not propose to 
touch his property. In all the loyal States, in- 
cluding Missouri, Kentucky, and a large part of 
Tennessee and Virginia, the only persons whose 
property could be touched by the bill would be 
those who abandoned it, and fled to other States 
to fight against the Union. How diiferentissucli 
a bill, and how harmless compared with the rad- 
ical measure wiiich has so alarmed the Senator 
from Pennsylvania that he declared its passage 
would do what treason could not, that " we our- 
selves will then have dissolved the Union !" What 
makes the course of some Senators who have 
spoken against this measure the more remarkable 
is the fact that two of them, at least, the Senator 
from Pennsylvania and my colleague, after de- 
nouncing the confiscation of rebel property to a 
limited extent, underanact of Congress, as some- 
thing monstrous and horrible, before concluding 
their speeches, both avow themselves in certain 
contingencies not only in favor of the confiscation 
or destruction of the property of rebels, but of 
arming their negroes to fight against them. Their 
trouble seems to be, lest confiscation should be 
regulated by law, and not left, as they insist it 
ought to be, to the arbitrary discretion of the Ex- 
ecutive. That I may not do injustice to any one 
I will read a few paragraphs from the speech of 
my colleague on this bill. He said: 

"The inexjiediency of this bill is as manifest as its un- 
constitutionality. Let it pass, and its provisions be heralded 
in advance of the Army as it inarches South, and what other 
effect can it have than to consolidate the entire people for 
one last despairing struggle against those whom they might 
then justly regard as enemies and oppressors instead of 
friends and benefactors? What possible inducement could 
they have to prefer submission to death? For one, I do not 
wish to waste the fortunes and devastate the homes of all. 
Leave something to make the guardianship of Government 
and the protection of law desirable." 

In a subsequent portion of his speech my col- 
league said: 

" Tliu Government has the right and power, and ought 
to exercise them, to seize and confiscate all the property, 
of every character, including slaves, of those in armed re- 
bellion against the Government, or who may give aid and 



comfort to those in arms, so far as such property may come 
within the reach of our Army, and so far as its seizure and 
confiscation may have any relation to the end and object 
of the war, and may tend to cripple and subdue the enemy 
or strengthen us, and promote the success of our arms ; and 
it is the duty of the Government to exercise this right, and 
to apply such property to the uses to which it is best adapted 
to aid in the successful prosecution of the war, in defraying 
its expenses and lightening its burdens on loyal citizens. 

" To accomplish this, neither legislation nor adjudication 
is necessary. The power is a war power— the right is a 
belligerent right. These principles are as applicable to slaves 
as to other property, and no officer should be permitted to 
use the forces under his command in repelling fugitives fnhn 
the lines, or in arresting and returning them to rebel mas- 
ters ; but they should be received, and used in whatever 
way they could be made most available and efficient in the 
prosecution of the war; and if any come, whose services 
cannot be made available, let them pass through the lines 
and shift for themselves. The Army is not bound to take 
care of them, and cannot have them as camp followers, to 
be provided for at the expense of the Government. All who 
can be advantageously used should be used. Let them do 
the drudgery and labor which would otherwise devolve on 
our soldiers. Let them open roads, build bridges, dig ditches 
and trenches, erect fortifications, and do labor of every 
kind which may be needed by a large army ; and if need be 
to save the Government from overthrow, tlie country from 
ruin, and our homes from desolation, let them be formed 
into companies and regiments, and drilled and disciplined 
and armed, to take their chances for wounds and death in 
the front of battle." 

I do not cead these passages for the purpose of 
exposing the inconsistency of my colleague, for 
it seems, after all, that it is not so much the con- 
fiscation of rebel property that he is opposed to 
as the manner in which it is done, he insisting 
" that neither legislation nor adjudication" is ne- 
cessary to accomplish the object; a position which 
I shall hereafter undertake 16 show is wholly un- 
tenable, and at war with both the spirit and letter 
of the Constitution. That the Constitution puts 
the force of the nation into the President's hands, 
"investing him with the war making power" 
which he may direct and control as he pleases, 
" and only restrained in so far by Congress in that 
he must depend upon them to foot his bills and 
authorize his levies," as insisted by the Senator 
from Pennsylvania, [Mr. Cowan,] I wholly deny. 
There is no warrant in the Constitution for the 
assumption of such powers by the Executive. So 
far from it, the war-making power is, by the Con- 
stitution, expressly vested in another department 
of the Government, and, as I shall presently show, 
the Supreme Court has decided that the power to 
confiscate enemy property does not reside in the 
Executive but in Congress, and nowhere else. 
And yet, strange as it may seem, these advocates 



\, 



of prerogative, who claim warpowersfor the Pres- 
ident higher and above and beyond the Constitu- 
tion, ai-e alarmed beyond measure at the bare pro- 
posal to enact a law whereby rebel property, to 
a very limited extent, maybe appropriated to the 
expenses of the war. 

As all the Senators who have spoken against 
the bill have made the same class of objections, 
I will reply to them somewhat in detail, though, 
I must confess, without much' hope of gaining 
their support to the measure, since they are evi- 
dently hunting for objections, and would doubt- 
less imagine others, if those already suggested 
were removed; for in their sympathy for rebels, 
whom they style brethren, they have vastly mag- 
nified the proportions of this bill, as has already 
been shown; and I can only regard the claim of 
power of confiscation in the President as a coun- 
ter proposition to defeat this, for we all know that 
the President does not pretend to exercise any 
such power; that he, in fact, has rebuked a dis- 
tinguished general for attempting to exercise it; 
and I shall undertake to show before I conclude 
that he could not constitutionally exercise such a 
power if he would. 

By way of meeting the objections to the pend- 
ing bill, I will take up the speech of the Senator 
from Pennsylvania, [Mr. Cowan,] which em- 
bodies most of them, and endeavor to show, as I 
think I can, that they are all unfounded. 

That I may not misstate his objections, I read 
from his speech. He said: 

" Congress cannot forfeit the property of rebels for longer 
than their lives, by the enactment of any law whatever, 
for tlie following reasons: 

" 1. Those persons now in rebellion, having levied war 
against the United States, are guilty of treason within the 
exact definition of that crime contained in the third section 
of the third article of the Constitution, in which it is de- 
clared that 

"'Treason against the United States shall consist only 
in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort.' 

" Hence, it cannot be doubted but that as soon as the 
rebels are arrested andbrought within the power of any law 
we may pass, they become eo instantc traitors, and obnox- 
ious to the punishment which is imposed by our statute for 
treason." ***** *** 

" The second clause of thatsame section provides further, 
that 

" ' The Congress shall have power to declare the punish- 
ment of treason, but no attainder of treason shall work cor- 
ruption of blood or forfeiture, except during the life of the 
person attainted.' 

" Therefore any law made for the guidance of the courts 
must conform to this provision, and no other or greater pen- 
alty could be imposed than it would warrant. If, therefore, 



the law was to enact an absolute forfeiture of the estatea 
of the traitor, it would be bad for the excess, and the judges 
would be obliged to make the sentence constitutional, either 
by cutting down the statutory penalty to a forfeiture of his 
estates for life, di by omitting to forfeit them at all. All this 
seems to me so obvious as not to be doubled." 

The answer to all this is to be found in the fact 
that the bill does not propose to confiscat&either 
absolutely or for life the property of rebels vho 
are or can be arrested. If, therefore, it were ad- 
mitted that it is not in the power of Congress to 
forfeit the property of rebels who are arrested and 
convicted of treason for longer than their lives, it 
could have no bearing upon this bill, for the simple 
reason that this bill only aims to reach the prop- 
erty of such rebels or traitors as are beyond the 
reach of judicial process, and can neither be ar- 
rested, tried, or convicted for treason or any other 
offense. Surely the prohibition against confis- 
cating beyond life the property of the man who 
is arrested and made to suffer in his person for 
his crimes cannot prevent the absolute confisca- 
tion of the property of the criminal who is beyond 
our reach, and cannot be arrested, but who has 
left property within our jurisdiction, which we 
can reach. 

Suppose a foreigner were engaged in this re- 
bellion against the Governiiient, it is clear that 
such a person, owing no allegiance to the Gov- 
ernment, could not be convicted of treason; does 
it therefore follow that his property within our 
jurisdiction could not be confiscated? Or in case 
of the rebellious citizen who flees beyond the juris- 
diction of the country, is his offense to be considered 
as beyond the reach of the Government, even to 
forfeit his property within its territorial boundary.' 
It is manifest that the clause of the Constitution 
limiting the punishment for treason can have no 
more application to the confiscation of the property 
of a person who cannot be arrested and tried for 
treason than has tlie punishment prescribed by 
statute for murder to do with that for larceny. 

The Senator from Pennsylvania further objects 
to the constitutionality of the bill — 

"Because, 

" 1. By the fifth amendment to the Constitution, it is pro- 
vided : 

" ' No person shall be held to answer for a capital or other- 
wise infamous crime, unless on a presentmelit or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia when in actual service, in time 
of war or public danger ; nor shall any person be subject, 
for the same offense, to be twice put in jeopardy of life or 
limb; nor shall be compelled in any criminal case to be 
a witness against himself; nor be deprived of life, liberty, 
or property, without due process of law ; nor shall private 






6 



property be taken for public ui?e without just compensa- 
tion.' 

" Here it is attempted to deprive a large class of persons 
of nil their estates and property, withoutjany arrest, with- 
out any presentment by a grand jury, without any trial by a 
petitjury. without, indeed, any trial at all in any court. This 
would be to deprive them of their property in the very face 
of the provision requiring that it shall only be done 'by due 
p)0<:ess of law,' which all commentators and all lawyers 
r^ree, means proceedings according to the course of the 
common law." 

It will be observed that the fifth amendment 
throws the same and even stronger safeguards 
around tlie life and liberty of a person than around 
his property, for the reason, doubtless, that life 
and liberty are more valuable than property. If, 
then, it is unconstitutional "to deprive a large class 
of persons of all their estates and property with- 
out any arrest, without any presentment by a 
grand jury, without any trial by a petitjury, with- 
out, indeed, any trial at all in any court," is it not 
equally unconstitutional to deprive them of life or 
liberty except by "due process of law.'" Is it 
then unconstitutional to shoot and take prisoners 
the rebels on the battle-field.' Are the patriotic 
soldiers who do it murderers? Would the Sena- 
tor from Pennsylvania have a presentment by a 
grand jury and a trial by a petitjury on the field 
of battle of each person in the enemy's ranks who 
was firing upon our soldiers, in order that he might 
not be shot and deprived of life in the very face of 
the provision requiring that it shall only be done 
^'by due process of law, which all commentators 
,and all lawyers agree means proceedings according 
±0 the courseof the common law?" Is it not clear 
ithat if we cannot take the property of ourenemies 
in war except " by due process of law," neither 
can we take their lives in any other way? 

What is the answer to all this? How is it, in 
theface of the fifth amendment, that Congress may 
.provide for taking the lives and property of rebels 
without ■'' due process of law?" The answer is 
to be fouKd in the grants of power in other parts 
of the Constitution, which declare that Congress 
shall have power " to declare war," and " make 
•rules concerning captures on land and water;" "to 
raise and support armies;"" to provide and main- 
tain a Navy; to make rules for the government 
and regulation of the land and naval forces; to 
provide for calling forth the militia to execute the 
laws of the Union., suppress insurrections, and 
■ repel invasions, ".and " to make all laws which 
shall be necessary and proper for carrying into 
execution the foregoing powers." These pro- 
-visions of the Constitution do not mean that Con- 



gress may raise armies and call forth the militia 
to suppress insurrection " according to the course 
of the common law," but to put it down by force 
and violence. It is' because the peace cannot be 
preserved, the enemy overcome, and the rebellion 
suppressed by proceedings according to the course 
of the common law that the Army is called into 
being, and when so called into being it operates, 
not according to the course of the common law, 
but according to the usage of armies engaged in war 
in dealing with their enemies. Hence the author- 
ity of the Army by violence to deprive an enemy 
of life, liberty, and property in time of war is as 
ample as that of the courts to deprive a person of 
either by due process of law in time of peace, for 
the reason that it is by force and violence that 
armies overcome their enemies; and when the Con- 
stitution conferred on Congress the power to raise 
and support armies, it conferred also, as incident 
to that power, the authority to use them in the 
manner that armies are accustomed to operate. 

The Senator from Pennsylvania and my col- 
league further object that this bill is obnoxious to 
the clause of the Constitution which declares that 
" no bill of attainder or ex post facto law shall be 
passed." The Senator from Pennsylvania ad- 
mijts that the bill is not within the letter of the 
Constitution, but thinks it within its spirit. My 
colleague, less liberal, and without, as I think, his 
usual fairness and candor in the argument of a 
question, disposes of the bill in a single sentence 
by saying, " I believe it is not denied that this is 
a bill of attainder within the meaning of the Con- 
stitution." Is my colleague so uncharitable as 
to suppose I would advocate a measure which I 
believed unconstitutional? I, who have declared in 
my place during the present session that I "want 
no other authority for putting down even this 
gigantic rebellion than such as may be derived 
from the Constitution, properly interpreted;" that 
" while fighting this battle in behalf of constitu- 
tional liberty, it behooves us especially to see to it 
that the Constitution receives no detriment at our 
hands;" and who have warned my countrymen 
"notto sanction usurpations of power which may 
hereafter become precedents for the destruction of 
constitutional liberty?" 

No, sir, if I admitted this to be a bill of attain- 
der, it would of course be an admission that it 
wasunconslitutional, and it could not for a moment 
receive my support. The remark of my colleague, 
that he believed " no one denied that this is a bill 
of attainder," is still the more remarkable, when 



taken in connection with what I said in explana- 
tion of the bill when it was. reported to the Senate. 
This was my language: . 

" Some have objected to the constitutional power to pass 
this bill because they say it is a bill of attainder. It is not 
a bill of attainder at all; It does not corrupt the blood of the 
party ; but it is a bill, as I said, operating upon property. 
The Supreme Court of the United States has expressly de- 
cided in the case of Brown vs. The United States — which 
I referred to on a former occasion — that Congress has au- 
thority to pass an act of confiscation, and if Congress has 
authority to confiscate the property of an enemy, the act of 
confiscation must be something different from a bill of at- 
tainder, because the Constitution expressly declares that 
no bill of attainder shall be passed." 

How, with this statement on the records of the 
Senate, made at the tinie the bill was reported for 
its consideration, my colleague could say that he 
believed " it was not denied that this is a bill of 
attainder," can only be accounted for on the sup- 
position that in his confidence in his own opin- 
ions he did not take the trouble to inquire what 
others had admitted or denied. The only author- 
ity referred to by any Senator for denominating 
this a bill of attainder is a remark of Chief Justice 
Marshall, incidentally made, by way of illustra- 
tion in the case of Fletcher vs. Peck, (6 Cranch,) 
when the question of bills of attainder was not 
before him, in which he said, "a bill of attainder 
may affect the life of an individual, or may con- 
fiscate his property, or both." Story and Kent 
both quote this remark of Judge Marsliall in their 
commentaries; but this reiteration of an obiter dic- 
tum remai'k by commentators adds nothing to it 
as an authority. To this incidental remark of 
Judge Marshall, made in a case in which the power 
to pass bills of attainder, or what they were, was 
not involved, I oppose the solemn decision of the 
same judge, at a later period , in the case of Brown 
vs. The United States, (8 Cranch,) in which he 
held that it was competent for Congress to pass 
a confiscation act. The force of this authority 
cannot be avoided by saying that Judge Marshall 
was deciding upon the right to confi.scate the prop- 
erty of a foreign enemy when he declared " the 
power of confiscating enemy's property is in the 
legislature," for if a confiscation bill is the same 
thing as a bill of attainder. Congress could no 
more pass such an act in regard to the property 
of a foreign than a domestic enemy, because the 
language of the Constitution is that " no bill of 
attainder shall be passed," which renders it just 
as unconstitutional to pass such a bill afiecting a 
foreigner as a citizen. 

But 1 will uttdertake to show that the bill under 



consideration is in no sense a bill of attainder. It 
does not propose to attaint any one, or to affect 
any one's person or blood. It does not name any 
one on whom it is to operate, but simply provides 
for the forfeiture of the property of persons guilty 
of certain offenses, who themselves are beyond 
the reach of courts, and cannot be brought to trial, 
the forfeiture to be enforced in the loyal States 
through the courts, by proceedings in rem, and in 
the disloyal States, in which the courts are over- 
borne, to be enforced, from the necessity of the 
case, through the military power. Such a bill has 
none of the characteristics of an attainder, which 
may be defined to be " that extinction of civil 
rights and capacities which takes place whenever 
a person who has committed treason or felony 
receives sentence of death for his crimes." Bills 
of attainder are, moreover, directed against some 
particular person or persons by name, who are 
thereby attainted for some crime already com- 
mitted. This bill provides for the forfeiture of 
estates in certain cases as a punishment for crime 
hereafter to be committed, when the person of 
the individual committing the offense cannot be 
reached. It does not attaint or convict any one 
of having committed a crime, nor of itself confis- 
cate the property of any one, and is no more like 
a bill of attainder than is an act imposing a fine as 
a punishment for assault and battery, or forfeiture 
of goods as a penalty foi' smuggling. , 

The right to confiscate the property of a rebel 
or traitor attaches without any conviction of the 
offender. This bill applies only to proceedings 
in rem. Ithas nothing to do with the punishment 
of the person, and, indeed, does not operate upon 
the property of a person who is within i-each of 
judicial process. In the case of The Palmyra, (12 
Wheaton, 1,) the Supreme Court, in speaking of 
an act like this, say: 

"Many cases exist where the forfeiture for acts done at- 
taches solely in rem, and there is no accompanying penalty 
in personam. Many cases exist where there is both a for- 
feiture ill rem and a personal penalty. But in neither class 
of cases has it ever been decided that the prosecutions were 
dependent upon each other. But the practice has been, 
and so this court understands the law to be, that the pro- 
ceeding inrem stands independent of, and wholly unaffected 
by, any criminal proceeding in yersonmn." 

The Senator from California, to show why this 
bill ought not to pass, quotes from Story the fol- 
lowing: 

" It surely is enough for society to take the life of the of 
fender, as a just punishment of his crime, without taking 
from his offspring and relatives that property which may 
he the only means of saving them from poverty and ruin.' 



8 



So say I, and the bill does not propose to touch 
the property of any one whose life has been taken 
or who can be brought to trial for his crimes, and 
it is therefore not obnoxious to the objection 
pointed out by Story. 

Another ground of objection to this bill is the 
allegation that it is an encroachment on the pre- 
rogative of the President, who, it is alleged, as 
Commander-in-Chief of the Army and Navy, al- 
ready possesses the power of confiscation; that 
the extraordinary powers which the Government 
may wield in time of war, called war powers, be- 
long to the President and not to Congress, and 
in support of this proposition my colleague cites 
the case of Luther vs. Borden, reported in 7 How- 
ard. I will endeavor to show, as I think I can, 
that such claims of prerogative on the part of the 
President ai-e unwarranted by the Constitution, 
against the practice of the Government from its 
foundation, and that the case of Luther vs. Bor- 
den, so far from being an authority for such as- 
sumption, is an authority agauist it. 

L There is not a syllable in the Constitution 
conferring on the President war powers. The 
Constitution simply makes him Commander-in- 
Chief of the Army and Navy when called into 
being, but he has no power to raise the one nor 
provide the other. As Commander-in-Chief when 
an army is raised, in the absence of any rules 
adopted by Congress for its government, he would 
have the right to control it, in the prosecution of 
the war, according to his discretion, not violating 
the established rules of civilized warfare, but he 
would not have the right to confiscate enemy 
property, because this is a power which can only 
be exercised in pursuance of an act of Congress, 
and does not belong to the Commander-in-Chief, 
who, as such, could only seize and hold property 
which was visible and tangible till the end of the 
war, when it would revert to its original owner. 

The Constitution says, "Congress" (not the 
President) " shall have power to declai'e war; to 
raise and support armies," and to " provide and 
maintain a Navy." Story, in his Commentaries 
on the Constitution, says: 

" The power to declare war is exclusive in Congress." 
♦ * * * "It includes the exercise of a!l the 
ordinary rights of belligerents, and Congress may, there- 
fore, pass suitable laws to enforce them. They may au- 
tJiiorize the seizure and condemnation of the property of 
the enemy, within or without the territory of the United 
States, and the confiscation of debts due to the enemy." 

2. When armies and navies are raised by Con- 
gress, of which the President is, by the Consti- 



tution, made Commander-in-Chief, he can only 
govern and regulate them as Congress shall direct; 
because the Constitution says, " Congress shall 
have power to make rules for the government and 
regulation of the land and naval forces." As well 
might it be said that, because the Constitution 
declares that the President "shall take care that 
the laws be faithfully executed," he is therefore 
not bound, in discharging this duty, to conform 
his action to the manner prescribed by Congress, 
as that he can govern the Army as he pleases, 
irrespective of the rules which Congress has es- 
tablished. 

3. It has been the practice of Congress, from 
the organization of the Government, to control 
the President in his government of the Army. 
The first Congress which met under, the Consti- 
tution adopted the rules and articles of war for the 
government of the Army, as they existed under 
the Confederation and before we had a President. 
In 1806, Congress revised the rules and articles 
for the government of the armies of the United 
States, in an act containing more than a hundred 
distinct articles, which, with few variations, are 
now the law, whereby the mode of organizing, 
officering, and governing the officers and men was 
regulated with great minuteness. The fifty-eighth 
article declares that — 

" All public stores taken in the enemy's camp, towns, 
forts, or magazines, whether of artillery, ammunition, 
clothing, forage, or provisions, shall be secured for the ser- 
vice of the United States, for the neglect of which the com- 
manding officer is to be answerable." 

Surely the men who made and put into operation 
the Constitution understood very little of its pro- 
visions when they passed such a law as this, if my 
colleague is right in his assertion that " the war- 
executing powers are vested in the President, in 
the executive department of the Government, and 
Congress has no more right to touch them or ex- 
ercise them than it has to usurp and exercise the 
judicial functions of the Government." How the 
Senator from Pennsylvania who declared, with 
such self-complacency, that the President " was 
invested with the war-making power," that " he 
is the commander directing and controlling it as 
he pleases," must be shocked at the ignorance of 
our fathers of the meaning of the Constitution 
they had made, when he reads over the hundred 
and one articles of war, and particularly the fifty- 
eighth article, which directs what is to be done 
with the public stores taken in the enemy's forts 
and camps. 

4. The advocates for this arbitrary power in the 



9 



President, without limitation or restraint of any 
kind, will find as little support for the assumption 
in judicial decisions as in the Constitution and 
the practice of the Government. Does not my 
colleague know that all which he quoted from the 
opinion of the court in the case of Luther t)s. Bor- 
den, had reference to the power of the President 
in calling out the militia in subordination to an 
act of Congress, and had no reference whatever to 
his power under the Constitution independent of 
such an act? Does he not know that without 
such act he could not call forth a man even to sup- 
press insurrection or repel invasion? If not, I 
refer him to the Constitution, which declares that 
" Congress shall have power to provide for call- 
ing forth the militia to execute the laws of the 
Union, suppress insun-ection, and repel invasion." 
That it was of the powers vested in the President 
by virtue of an act of Congress passed in pursu- 
ance of, this clause of the Constitution of which 
tlie court spoke in the extracts read by my col- 
league, and not of the President's power under 
the Constitution independent of such an act, will 
be apparent from a glance at a part of the opinion 
which my colleague did notread. The court say: 

" The fourth section of the fourth article of the Consti- 
tution of the United States provides tliat tlie United States 
Khali guaranty to every State in the Union a republican 
form of government, and shall protect each of them against 
invasion ; and on the application of the Legislature, or of 
tlie Executive, (when the Legislature cannot be convened,) 
against domestic violence. Under this article of the Con- 
stitution, it rests with Congress to decide what government 
is the established one in a State. 

" So, too, as relates to the clause in the above-mentioned 
article of the Constitution, providing for cases of domestic 
violence. It rested with Congress, too, to determine upon 
the means proper to be adopted to fulfill this guarantee. 
They might, if they had deemed it most advisable to do so, 
have placed it in the power of a court to decide when the 
contingency had happened which required the Federal Gov- 
ernment to interfere. But Congress thought otherwise, and 
no doubt wisely; and by the act of February 28, 1795, 'pro- 
vided that, in case of an insurrection in any State against 
the government thereof, it shall be lawful for the President 
of the United States, on application of the Legislature of 
such State, or of the Executive, (when the Legislature can- 
not be convened,) to call forth such number of the mililia 
of any other State or States as may be applied for as he may 
judge sufficient to suppress such insurrection.' By this act 
the power of deciding whether the exigency had arisen 
upon which the Government of the United States is bound 
to interfere is given to the President." 

What now becomes of this case as an author- 
ity to show that the President possesses the war 
pov/er without any act of Congress, when the 
court say " by this act" not by the Constitution 



" the power of deciding whether the exigency had 
arisen, upon which the Government of the United 
States is bound to interfere, is given to the Pres- 
ident;" and that Congress " might, if they had 
deemed it most advisable to do so, have placed it 
in the power of the court to decide when the contin- 
gency had happened which required the Federal 
Government to interfere?" Because the court in a 
subsequent part of their opinion argue to show 
that the President, by virtue of his high ofRce, was 
a proper person for Congress to vest with this 
power, my colleague insists that therefore he had 
itfrom the Constitution, when thecourt expressly 
say he gets it from the act of Congress. My col- 
league, by parenthetically inserting a few words 
in his quotation of detached sentences of this opin- 
ion entirely perverts its meaning. This will, 1 
think, be apparent on my reading from his speech 
some of the quotations with the interpolations. 
Take the following: 

" After the President [not Congress] has acted and called 
out the militia, is a circuit court of the United States au- 
thorized to inquire whether his decision was right?" * 
* * * "It is said that this power [the war 
power] in the Pre-stflont is dangerous to liberty, and may 
be abused." 

It will be observed that the words "not Con- 
gress" and the words " the war power" are in- 
terpolations. Now, the action of the President and 
his power here spoken of were the action and 
power to call forth the militia underact of Con- 
gress, and not a denial of the power of Congress 
itself to do it nor of" the war power," as the in- 
terpolated parentheses would indicate. 

But, sir, another decision of the Supreme Court 
of the United States disposes of all these questions, 
decides that the power of confiscation is vested in 
Congress and nowhere else, that the President pos- 
sesses no such power under the law of nations, 
and that the modern usage or law of nations does 
not of itself by its own force constitute a rule 
which acts upon property except through the 
sovereign power, the legislature. I refer to the 
case of Brown vs. The United States, reported in 
8 Cranch, (page 110,) in which the court say: 

" Eespecting the power of Government no doubt is en- 
tertained. That war gives to the sovereign full right to 
take the persons and confiscate the property of the enemy 
wherever found, is conceded. The mitigations of this rigid 
rule, which humane and wise policy of modern times has 
introduced into practice, will more or less affect the exer- 
cise of this right, but cannot impair the right itself. That 
remains undiminished, and when the sovereign authority 
shall choose-to bring it into operation, the judicial depart 
nient must give effect to its will. But until tliat will shall 



10 



be expressed, no p»vver of jcondemnation can exist In the 
court." ********* 

"War gives an equal right over persons and property; 
and if its declaration is not considered as prescribing a law 
respecting the person of an enemy found in our country, 
neither docs it prescribe a law for his property. The act 
concerning alien enemies, which confers on the President 
very great discretionary powers respecting their persons, 
affords a strong implication that lie did not possess those 
powers by virtue of the declaration of war. 

" The ' act for the safe-keeping and accommodation of 
prisoners of war,' is of the same character. 

"The act prohibiting trade witli the enemy contains this 
clause : ' ^nd be it further enacted, Tiiat the President of 
the United States be, and he is hereby, authorized to give, 
at any time within six months after the passage of this act, 
passports for the safe transportation of any ship or other 
property belonging to British subjects, and wliich is now 
within the limits of the United States.' 

"The phraseology of this law shows that the property of 
a Britisli subject was not considered by the legislature as 
being vested in the United States by the declaration of war ; 
and the authority which the act conferson the Presidentis 
manifestly considered as one which he did not previously 
possess. 

" It is urged that, in executing the laws of war, the Exec- 
utive may seize and tlie courts condemn all property which, 
according to the modern law of nations, is subject to con- 
fiscation ; although it might require an act of tbe legisla- 
ture to justify the condemnation of that property which, 
according to modern usage, ought not to be confiscated. 

" This argument must assume for its basis the position 
tiiat modern usage constitutes a rule whicli acts directly 
upon the thing itself by its own force, and not through the 
sovereign power. Tliis position is not allovi'ed. Thisusage 
is a guide which the sovereign follows or abandons at his 
will. The rule, like other precepts of morality, of human- 
ity, and even of wisdom, is addressed to the judgment of the 
sovereign, and although it cannot be disregarded by him 
without obloquy, yet it may be disregarded. 

"The rule is, in its nature, flexible. It is subject to in- 
finite modification. It is not an immutable rule of law, but 
depends on political considerations, which may continually 
vary. 

" Commercial nations, in the situation of the United 
States, have always a considerable quantity of properly in 
the possession of their neighbors. When war breaks out, 
the question, what shall be done with enemy property in 
our country, is a question rather of policy than of law. The 
rule which we apply to the property of our enemy will be 
applied by him to the property of our citizens. Like all 
other questions of policy, it is proper for the consideration 
of a department which ean modify it at will, not for the 
consideration of a department which can pursue only llje 
Jaw as it is written. It is proper for the consideration of 
the legislature, not of the executive or judiciary. 

" It appears to the court, that the power of confiscating 
enemy property is in the legislature, and that the legisla- 
ture has not yet declared its will to confiscate property 
which was within our territory at the declaration of war." 
Chief Justice Marshall, in this opinion, effect- 
ually disposes of the assumption thatthe Execu- 
tive may seize and the courts condemn all property 



which, according to the modern law of nations, is 
subject to condemnation, as well as of that other 
assumption that there is a law of nations higher 
and above the sovereign power of the Stale, by 
declaring that such law is but a guide which the 
sovereign follov/s or abandons at will, and that 
although it cannot be disregarded without oblo-i^ 
quy, yet it may be disregarded. If this were not 
so, the extraordinary spectacle might be presented 
of the courts of a country disavowing and annull- 
ing the acts of their own Government in matters 
of state and political diplomacy. 

Another objection urged to the bill is, that it 
confiscates the property of all absent rebels, in- 
cluding those who have been unwillingly forced 
into the confederate service as well as those who 
have voluntarily entered it. A moment's reflec- 
tion must satisfy all that this objection is without 
force, for no court or commission would ever en- 
force a penalty against a person who had been 
compelled by force to commit the act of forfeiture. 
The principle of law is too well settled to require 
discussion, that no man can be held responsible 
for acts which he had not the power to prevent; 
nor is any saving clause necessary in the bill to 
protect the property of those forced into the rebel- 
lion from forfeiture, any more than there is for 
such a clause to protect a man found among a band 
of robbers or pirates, when he was able to show 
that he had been forced to join them. But if the 
bill were obnoxious to this objection, which, in 
my opinion, it is not, it would be easy to obviate 
the difficulty by limiting its operation to the prop- 
erty of such absent persons as shall join the re- 
bellion without restraint. 

Having shown, as I think, that the bill is not 
of the sweeping character represented by Senators 
who have spoken against it, that it is not obnox- 
ious to the charges of unconstitutionalty which 
they have made, and that the war power is not in 
the President, but in Congress, which has exer- 
cised it from the foundation of the Government, 
I assume, as positions which cannot be success- 
fully controverted, that Congress, in providing for 
the prosecution of the war against the rebels, has 
a right to direct that such means shall be resorted 
to as it believes necessary and proper for the at- 
tainment of the end of the war, which is the s«p- 
pression of the rebellion; and that no court can 
set aside or annul any action which Congress may 
take in the premises, for the reason that the Con- 
stitution, by vesting in Congress the express power 
" to declare war," "to raise and support armies," 



11 



provide for their government, *• make rules con- 
cerning captures on land and water," and for sup- 
pressing insurrection by force, has vested it also 
with the discretion of determining what means are 
necessary and proper to enable it to carry into 
effect these granted powers. It does not belong 
to the courts to determine how a war shall be pros- 
ecuted, or what shall be done with the persons or 
property of an enemy. Those are questions de- 
pending on political considerations, which may 
continually vary, and to be judged of by the sov- 
ereign power, which in this country is the people, 
who speak through their Representatives in Con- 
gress so for as war matters are concerned. All 
the courts can do is to aid in giving effect to the 
sovereign will when expressed. The position that 
in executing the laws of war, the Executive may 
seize and the courts condemn all property, which, 
according to the modern law of nations is subject 
to confiscation, in the language of the Supreme 
Court already quoted, " is not allowed," because 
this law of nations, as the court say, is only " a 
guide which the sovereign follows or abandons 
af his will." It is wholly dependent on our Gov- 
ernment for its being recognized here at all. The 
rule in regard to the seizure and appropriation of 
enemy property is stated in these words by writers 
on international law: 

" From the moment one State is at war witli another, it 
lias, on general principles, a right to seize all the enemy's 
property, of whatsoever kind and wheresoever found, and 
fo appropriate the property thus taken to its own use or to 
that of the captors." 

My colleague in speaking of belligerent rights, 
said: 

"One of these is the right to take, confiscate, appropri- 
ate, and dispose of, as we please, absolutely and forever, 
all tlie movalile property of every kind and character be- 
longing to the enemy individually and collectively, which 
has any relation to the end of the war, and which tends to 
our advantage by strengthening us or by weakening the 
enemy, and diminishing his ability to carry on tlie war and 
do us injury. 

" The exercise of tliis belligerent power, the assertion of 
this belligerent right of seizure and confiscation, in no sense 
and to no extent endangers the liberty of the citizen, nor 
is there the least occasion for alarm in that regard." 

This may seem strange language on the part of 
my colleague, when compared with another part 
of his speech, in which he denounces this bill, 
which does not propose to touch the property of 
a single rebel, even, whose person is within the 
reach of judicial process, in these words: 

"The sure andcertaineffectof this bill would be to make 
peace and reunion an impossible thing. It would fill the 



hearts of the entire people with despair, and nerve their 
arms with the energy and desperation which despair in- 
spires. It would turn to the blackness of night the lastglim- 
meringhope of future fraternity between now alienated and 
exasperated brethren." 

What so alarms and horrifies my colleague and 
the Senator from Pennsylvania [Mr. Cowan] is 
not that rebel property, to a limited extent, is pro- 
posed to be confiscated, but that it is proposed to 
be done in pursuance of laws enacted by the peo- 
ple's representatives in Congress assembled, and 
not left to the will and caprice of the President, 
without limitation or restraint of any kind or char- 
acter upon. his power; and that, too, as I insist, 
and think I have shown, in defiance of the very 
terms of the Constitution, and of the well-con- 
sidered decision of the Supreme Court in the case 
of Brown vs. United States already referred to. 

But my object in making these quotations from 
my colleague's speech was not to expose his in- 
consistencies, but to establish what were the rights 
of a belligerent, as even the opponents of this bill 
admit. I admit the correctness of my colleague's 
definition, except in his limitation of the power of 
confiscation to "movable property." Neither 
the elementary writers upon international law or 
the Supreme Court make any such limitation. 
Its propriety is another question; and for one, 1 
am unwilling that rebel chiefs, like Slidell and 
Mason, who are said to be large landholders in the 
loyal States, and have escaped to foreign lands, 
should be permitted to enjoy the fruits of their 
estates situated within our jurisdiction, while the 
lives and property of thousands of loyal men have 
been sacrificed and a debt incurred which will be 
a burden on the country for generations to come 
in consequence of the wicked rebellion which 
they have inaugurated. 

That we have the right to exercise belligerent 
rights towards the persons and property of those 
in arms against the Government, and who are 
fighting for its overthrow, even the opponents of 
this bill admit. When a rebellion becomes iso 
formidable as to be able to muster armies of hun- 
dreds of thousands of men and maintain itself in 
arms against the forces of the Government for 
almost a year, it surely has attained a magnitude 
entitling it to be called a civil war; and interna- 
tional law writers agree that the common laws of 
war are to be observed in a civil war in the same 
manner as in a war between independent States. 
If, therefore, in waging war against a foreign 
nation,the United States could confiscate the prop- 
erty of the enemy through an act of Congress, 



12 



and only in pursuance of an act of Congress, as 
decided by the Supreme Court, it follows that they 
may now confiscate the property of the rebels. 
It matters not whether the war we are waging 
be with foreign or domestic enemies, our rights 
against them are the same while the war contin- 
ues; and in the prosecution of the war we have a 
right, for the time being, to treat all parts of the 
country which are in possession of the rebels, and 
where the laws of the Union are overborne, as 
foreign. 

This principle was s.ettled by a decision of the 
Supreme Court in the case of the United States 
vs. E.ice, (4 Wheaton, 246,) in which it was held 
that the town of Castine, in Maine, which was 
taken possession of and occupied by the British 
for several months during the war of 1812, was, 
while in their possession, as respects our revenue 
laws, to be deemed a foreign country, so that goods 
imported into it were not imported into the Uni- 
ted Slates, nor subject to the payment of duties; 
and if a portion of the Union occupied by the en- 
emy may be treated as foreign for revenue, why 
not also for confiscation purposes? All the de- 
partments of the Government — executive, legis- 
lative, and judicial — have, for certain purposes, 
already treated those parts of the Union in pos- 
session and under the control of the rebels as for- 
eign, and the rebels themselves as enemies orbel- 
ligerents. This has been done by the passage of 
a non-intercourse act; by the blockade of the rebel 
coast; by the condemnation, as lav/ful prize, of 
vessels attempting to run the blockade; by the in- 
terchange of flags of truce, the exchange of pris- 
oners, and in various other ways. Thus treating 
a portion of the Union as foreign for war pur- 
poses, and the rebels as belligerents, while it gives 
us, du ring the con tinuance of the war, all the rights 
which we could exercise against the property and 
persons of foreign enemies, does not impair our 
right when the laws of the Union shall be estab- 
lished over the rebellious districts, and the rebels 
themselves reduced to subjection, to treat them as 
traitors and punish them for their crimes, which 
I trust will be done, at least so far as the leaders 
are concerned. 

Vattel, who insists that the common laws of 
war should be observed in every civil war, says 
on this subject: 

" When tlie sovereign has subdued the opposite party, 
and reduced them to submit and sue for peace, he may ex- 
cept from the amnesty the authors of the disturbances— the 
leaders of the party ; he may bring them to a legal trial, and 
punish th«m if they be found guilty," 



But it is said the passage of this bill, admitting 
its constitutionality, would be inexpedient; that 
it would make the rebels desperate, and unite the 
South as one man against the Union. How so, 
let me ask ? It does not propose to touch the prop- 
erty of any loyal citizen, and why, therefore, 
should it drive him against the Union .' Are there 
no loyal persons in the South, or is their love for 
the traitors who have driven them from their 
homes and robbed them of theirproperty so strong 
that rather than take rebel property to help defray 
the expense of maintaining the Government 
against the i-ebellion, they would themselves turn 
traitors.' Surely this would exhibit a weakness 
and compassion for enemies, and a malignity 
and hatred of friends, such as the world never 
before witnessed. Besides, sir, not to confiscate 
the property of rebels is to encourage future rebel- 
lions. Wherever the rebels bear sway they have 
not hesitated to confiscate the property of loyal 
citizens; and if now, as the authority of the Union 
is restored, the persons who have robbed loyal 
citizens are to be protected in their property, what 
is it but saying to the people of the country, that 
whenever a future insurrection arises, the sure 
way to protect their property will be to join in it; 
and what is this but to offer a premium for trea- 
son.' To show the effects of this in individual 
cases, I quote from a letter received within a few 
days from a gentleman in New York, who says: 

"I hold a mortgage for $35,000 on a plantation sold by me 
In Mississippi. This plantation is not far from one belong- 
ing to Jeff Davis. My mortgage is confiscated; myself and 
family are heavily embarrassed by engagements predicated 
upon this mortgage. We are Innocent parties; Jeff Davis 
is guilty ; and why should he be allowed to escape unharmed 
after entailing bankruptcy upon loyal individuals and deso- 
lation through a whole section .'" 

This is but one case of which there are hundreds 
of thousands all through the South. But few of 
those engaged in this rebellion will ever be made 
to suffer in their persons; and if they are to be left 
in the full possession and enjoyment of their cotton, 
their lands, and their negroes, the innocent will 
have been made to suffer while the guilty will go 
unpunished. The enhanced price which the rebels 
will get for their sugar and cotton at the close of 
the war will contrrbute largely towards making 
up the losses they have incurred by their rebellion , 
while loyal farmers, manufacturers, merchants, 
and, indeed, all classesof loyal citizens both North 
and South, will be impoverished to the extent of 
P,000,000,000. Tens of thousands of lives will 
be sacrificed, hundreds of thousands of men will 






13 



£?ir 



be crippled forlife, hundreds of thousands of others 
will be left orphans on the bounty of the nation, 
while the authors of all this misery will escape 
almost entirely unhurt, unless their property is 
made to pay the penalty. Is this just? Shall the 
innocent, loyal, and patriotic citizens of my own 
State, who have contributed so liberally of their 
blood to the maintenance of the Union and the 
preservation of constitutional liberty, be deprived 
of their property to pay the expenses of this war, 
while they who prosecute it against the Union are 
permitted to enjoy theirs? Shall the fathers of the 
gallant sons whose mangled bodies have been 
borne back to Illinois by hundreds, from the bloody 
fields of Belmont, of Donelson, and Pea Ridge, be 
ground down by onerous taxes, which shall de- 
scend upon their children to the third and fourth 
generations to defray the expenses of defending 
the Government against traitors, and we forbear to 
touch even the property of the authors of these 
calamities, whose persons are beyond our reach? 
Suppose ye that the loyal people of this country 
will submit to such injustice? 

I believe I represent as loyal, as patriotic, and 
as brave a constituency as any other Senator. I 
claim nothing more. If western men have fought 
more battles and won more victories for the Union 
than their brethren of the East, it is because they 
have had more opportunities. It has been their 
good fortune to be led against the enemy instead 
of being idly confined in camps. The capture of 
Newbern, chiefly by New England troops under 
the gallant Burnside, shows that the eastern army 
needs but to be led against the enemy to drive him 
from Virginia and the Carolinas as effectually as 
he has been expelled from Missouri and Ken- 
tucky. While, therefore, I am proud of the part 
which the soldiers of my own State took in de- 
feating the enemy in the West, I do not claim for 
them any superiority over the other soldiers- of 
the Republic. The brave men who besieged Don- 
elson, and who, after fighting through the day for 
three consecutive days, lay each night on the 
ground without shelter, exposed to the rain and 
the sleet, were chiefly Illinoisans. It was there 
that rebellion received the heavy blow which has 
staggered it ever since. Forty dead bodies were 
borne from that bloody field to one small town in 
.my State and buried in a common grave. The 
Union forces at Pea Ridge were also largely made 
up of soldiers from Illinois. Suppose ye, that I 
can go back to Illinois, among the relatives of 
those who have been cruelly destroyed, and pro- 



pose to levy taxes upon'tJiem in order to concil- 
iate and compensate the murderers, for that is 
really what exempting rebel property from confis- 
cation amounts to ? Sir, I know not if they would 
submit to such injustice; and yet there are those 
who not only talk of an amnesty to the men who 
have brought these troubles upon the country, but 
oppose providing the mild punishment of confis- 
cation of property for those who shall continue 
hereafter to war upon the Government, and whose 
persons are beyond our reach . I am surprised 
that a bill of this character should meet with op- 
position from Senators of the border States whose 
loyal citizens the rebels, whenever they have had 
the power, have robbed, plundered, and driven 
from their homes. Do gentlemen regard it as con- 
ciliatory to oblige us to lay taxesupon those whose 
habitations have been consumed, to reward those 
who have burned them ? upon those whose whole 
property has been stolen, to reward the thieves? 
upon those whose relatives have been slain, to 
compensate the murderers? In my judgment, 
justice, humanity, and mercy herself, all demand 
that we at once provide that the supporters of this 
cruel and wicked rebellion should henceforth be 
made to feel its burdens. 

To the most important features in the bill under 
consideration I have thus far made no allusion. 
They are the second and third sections of the bill. 
The second section is in these words: 

^nd be it further enacted, Tliat every person liaving claim 
to the service or labor of any other person in any State 
under the laws thereof, who during the present rebellion 
shall take up arms against the United States, or in any man- 
ner give aid and comfort to said rebellion, shall thereby 
fonllwith forfeit all claim to such service or labor, and the 
persons from whom it is claimed to be due, commonly called 
slaves, shall, ipso /acfo, on ihe commission of the act of for- 
feiture by the party having claim to the service or labor as 
aforesaid, be discharged therefrom, and become forever 
thereafter free persons, any law of any State, or of the United 
States, to the contrary notwithstanding. And whenever any 
person claiming to be entitled to the service or labor of any 
other person shall seek to enforce such claim, he shall, in 
the first instance, and before proceeding with the trial of 
his claim, satisfactorily prove that he is and has been dur- 
ing the existing rebellion loyal to the Government of the 
United States. And no person engaged in the military or 
naval service of the United Statesshall. under any pretense 
whatever, assume to decide on the validity of the claim of 
any person to the service or labor of any other person, or to 
surrenderup any such person to the claimant. 

The third section makes it the duty of the Presi- 
dent to provide for the colonization and protection, 
as freemen, in some tropical country, of such of 
the African race made free by the previous section , 



14 



■ ; ^, . : 

as may desire to emigrate. Slavery is admitted, 
by most loyal citizens, to have been the cause 
of this wicked rebtllion; and it is also very gen- 
erally admitted that the Federal Government has 
no power under the Constitution to remove this 
cause by abolishing slavery in the States. I, in 
common with Republicans generally, have often 
declared that Congress was not responsible for and 
had no power under the Constitution to interfere 
with slavery in the States. I say so to-day; and 
because the Republican party generally has main- 
tained this position, the Senator from Pennsyl- 
vnia, [Mr. Cowan,] in the name of Republican- 
ism, arraigns those of us who are in favor of this 
bill as acting inconsistently with our professions. 
He has probably been misled by the title of the bill, 
which might m^ore properly be styled a bill to dis- 
courage rebellion, than " a bill to confiscate the 
pro|ierly and free the slaves of rebels;" for, sir, 
this bill does not make a rebel of anybody, nor 
of itself free a single slave. If a slave gets his free- 
dom under it, it will be by the voluntary act of his 
rebel master. Surely the Republican party never 
pledged itself not to. pass a law to punish rebels. 

Suppose before this rebellion broke out a slave 
had been detected in robbing the mail: would the 
Senator from Pennsylvania have considered the 
Republican parly bound by its pledges not to pun- 
ish the slave for his crime, lest in so doing it should 
interfere with slavery.' Suppose a servile insur- 
rection to have broken out in some southern State, 
and the State to have called on the Federal Gov- 
ernment to furnish aid for its suppression: would 
the Senator have considered the Republican party 
bound not to respond to this constitutional call 
lest it should interfere with slavery in a State.' Or 
suppose the slaves of the South shouldbearmed by 
their rebel masters and marshaled to fight against 
the Union: would the Republican Senator from 
Pennsylvania hesitate to direct the Union armies to 
shoot them on the battle-field, lest in so doing they 
should interfere with slavery ? I presume the Sen- 
ator would do none of these things. Neither Con- 
gress nor the General Government can do any- 
thing directly for the purpose of interfering with 
slavery in a State. This I admit to its fullest ex- 
tent; but Congress may and ought to provide for 
the punishment of crimes committed against the 
laws of the Union; it may and ought to provide 
for the suppression of i-ebellion; and if in doing 
this slavery suffers, or is interfered with, it is not 
the Government which makes the interference, 
but they who violate the laws and war against the 



Government. So, if any slave shall ever obtain 
his freedom under this bill, it will be in conse- 
quence of the acts of his rebel master, and I am 
not aware that the Republican party ever pledged 
itself not to allow the owners of slaves to make 
them free. 

I would to God that every rebel in the land 
would to-morrow ground the weapons of his re- 
bellion, return to las allegiance, and to obedience 
to the laws and Constitution. In that event this 
bill if passed into a law would have no effect 
either upon his property or his slaves; but if he 
will continue in rebellion againstthe Government, 
to plunder and murder loyal citizens, I have never 
pledged myself as a Republican not to mete out 
to him the punishment his crimes deserve. If 
this rebellion should result in freeing the slaves 
of rebels, it will not be the first time in the history 
of the world that good has come out of evil; but 
it will not be the act of Congress which makes 
them free any more than it is the act of Congress 
punishing the crime of larceny that makes a man 
a thief. 

It has been said that Congress possesses no 
more power to pass this bill now than in a time of 
peace. I assent to the proposition, and insist that it 
would have been perfectly competent for Congress 
to have passed such a bill at any time. Like all 
criminal laws, it would remain inoperative upon 
the statute-book till the offense was committed for 
which it provided the penalty, when it would come 
into play for the purpose of punishing the offend- 
ers. It so happens, in the providence of God, that 
most of those who own slaves are now in arms 
against the Government. This gives to the Gov- 
ernment the power to destroy them and all they 
possessif necessary to suppress the rebellion; and 
Congress is vested by the Constitution with the 
discretion ofdetermining what means shall be used 
to accomplish the object; not only so, but it is 
made the duty of Congress to provide for sup- 
pressing the insurrection. In making this provis- 
ion, is it not wise that Congress should so act, 
that if men will fight and war against the Govern- 
ment, they shall not do so without the loss of that 
species of property which has been the impelling 
power to drive them into rebellion, and thereby 
take away any motive for repeating the experi- 
ment when this rebellion shall have been sup- 
pressed? Such an opportunity to strike a blow 
for freedom seldom occurs as that now presented 
to the American Congress. 

As most of the owners of slaves are engaged in 



it' 



15 



the rebellion Land will probably continue so for 
some time, the effect would be, if this bill were 
speedily enacted into a law, that they would by 
their own act give freedom to most of the slaves 
in the country, and thus would be solved, in a 
great measure, through the agency of this wicked 
rebellion, the great question, what is to be done 
with African slavery ? a subject in view of which 
Jefferson, in his day, exclaimed, that " he trem- 
bled when he remembered that God was just." I 
appeal to Senators as philanthropists, as patriots, 
as lovers of the Union and of constitutional lib- 
erty, not to let pass this opportunity which a 
wicked rebellion presents, of making it the means 
of giving freedom to millions of the human race, 
and thereby destroying to a great extent the 
source and origin of the rebellioH, and the only 
thing which has ever seriously threatened the 
peace of the Union. 

Having, as I think, shown that the right to con- 
fiscate enemy property exists; that for this pur- 
pose the rebels may properly be treated as enemies ; 



that confiscation can be effected only through an 
act of Congress; that the bill under consideration 
is constitutional; and that it is both wise and ex- 
pedient to take from those who shall continue to 
fight against the Government after the passage of 
this act, and whose persons are beyond the reach 
of punishment, their property and their slaves so 
far as they are within our reach, I appeal to all 
those who favor these views to stand together, 
and let us passj,he bill at as early a day as pos- 
sible, with such modifications and amendments as 
may be thought advisable, not losing sight of the 
great object in view. It is no time to talk of am- 
nesties and conciliation, when the habitations of 
loyal citizens are being plundered and their lives 
destroyed. When the rebels, whose hands are 
dripping with the blood of loyal citizens, shall 
have grounded their arms, it will be time enough 
to talk of clemency; but to have our sympathies 
excited in their behalf now, when fighting to over- 
throw the Government, is cruelty to the loyal men 
who have rallied to its support. 



